Anil Prasad Singh v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVIEW No.14 of 2022 In Civil Writ Jurisdiction Case No.3719 of 2021 ====================================================== Anil Prasad Singh S/o Late Ragho Prasad Singh, Village and P.O. - Kadil Pur, Block and Circle - Jandaha, Dist. - Vaishali, Present Address - Veena Nivas C/O Sri Sachida Nand Singh Mahaveer Colony (Near Mahaveer Mandir), Beur, Patna - 2.
... ... Petitioner/s
Versus
1.
The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. 2.
The District Magistrate Vaishali (Hajipur).
3.
Dy Election Officer, Vaishali.
4.
Assistant Election Registration Officer, 129, Mahanar cum Block Development Officer Jandaha, Dist. - Vaishali. ... ... Opposite Party/s ====================================================== Appearance :
For the Petitioner/s :
Mr.Anil Prasad Singh (in person) For the Opposite Party/s :
Mr.
====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI) Date : 27-08-2024 On 29.07.2024 a detailed order had been passed as to how petitioner-in-person's grievance relating to representation of the year 2012 is not liable to be considered by citing number of decisions of the Hon'ble Supreme Court. Extract of the order dated 29.07.2024 reads as under :
"Petitioner has filed the present civil review to recall the order dated 22.12.2021 passed in C.W.J.C. No.3719 of 2021. Grievance of the review petitioner was in respect of considering his representation stated to have been filed in the year 2012 in which his
2/21 grievance is relating to issuance of Election Commission of India Identity Card (Voter Identity Card).
2. During the pendency of C.W.J.C. No.3719 of 2021, Coordinate Bench has noticed that petitioner is in receipt of Voter Identity Card as on 22.12.2021.
3. Party in person submitted that he is entitled to Voter Identity Card with reference to his representation submitted in the year 2012 and not with reference to the representation submitted in the year 2020. The concerned respondents have issued Voter Identity Card only with reference to his application/ representation submitted in the year 2020.
4. Even assuming that the order dated 22.12.2021 passed in C.W.J.C. No.3719 of 2021 is recalled and main matter is heard once again in that event petitioner has to satisfy delay and latches for the reasons that his grievance is with reference to representation submitted in the year 2012 for issuance of Voter Identity Card. On the other hand, he has approached this Court in filing C.W.J.C. No.3719 of 2021 in the year 2021. He has to explain delay and latches from the year 2012 to 2021 on the next date of hearing with reference any judicial pronouncement on this issue.
5. On the other hand, Courts have held repeated representation does not amount to fresh cause of action. In the case of State of Uttaranchal and another vs. Sri Shiv Charan Singh Bhandari and others, (2013) 12 SCC 179, where the Hon'ble Supreme Court held that "it is clear as crystal that even
3/21 if the court or tribunal directs for consideration of representation relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time." Similar views are in the following decisions:
(a) Union of India vs. Tarsem Singh reported in (2008) 8 SCC 648.
(b) State of M.P. vs. Yogendra Shrivastava reported in (2010) 12 SCC 538.
(c) Syed Mohammad Suleman vs. State of U.P. and 2 Others (Special Appeal Defective No.655 of 2015).
(d) Bichitrananda Behera vs. State of Orissa reported in 2023 SCC OnLine SC 1307.
(e) Mrinmoy Maity vs. Chhanda Koley reported in 2024 SCC OnLine SC 551.
(f) State of West Bengal vs. Debabrata Tiwari, 2023 SCC OnLine SC 219.
In the case of Union of India v. Tarsem Singh, (2008) 8 SCC 648, wherein the Hon'ble Supreme Court summarized the law as follows: - "To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal).
4/21 One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties.
But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
(Emphasis added) The same principle of law was reiterated in State of M.P. v. Yogendra Shrivastava: (2010) 12 SCC 538, in which it was held that: - "18....Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the
5/21 doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application."
In paragraph 21 of the judgment in the case of Bichitrananda Behera versus State of Orissa, 2023 SCC OnLine SC 1307, the Hon'ble Supreme Court has referred to some precedents on the point of latches and the relevant passage is being reproduced below: - "21. Profitably, we may reproduce relevant passages from certain decisions of this Court:
(A) Union of India v. Tarsem Singh, (2008) 8 SCC 648:
"To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ
6/21 petition) or limitation (where remedy is sought by an application to the Administrative Tribunal).
One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury.
But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
(emphasis supplied by the Hon'ble
7/21 Supreme Court) (B) Union of India v. N Murugesan, (2022) 2 SCC 25:
"Delay, laches and acquiescence 20.
The principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions. However, they have their distinct characters and distinct elements.
One can say that delay is the genus to which laches and acquiescence are species.
Similarly, laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create nonconsideration of condonation in certain circumstances.
They are bound to be applied by way of practice requiring prudence of the court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel.
The question of prejudice is also an important issue to be taken note of by the court.
Laches 21.
The word "laches" is derived from the French language meaning "remissness and slackness". It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party.
It is neglect on the part of a party to do an
8/21 act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy.
22. Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. As stated, it would also involve acquiescence on the part of the party approaching the court apart from the change in position in the interregnum.
Therefore, it would be unjustifiable for a Court of Equity to confer a remedy on a party who knocks its doors when his acts would indicate a waiver of such a right.
By his conduct, he has put the other party in a particular position, and therefore, it would be unreasonable to facilitate a challenge before the court. Thus, a man responsible for his conduct on equity is not expected to be allowed to avail a remedy.
23. A defence of laches can only be allowed when there is no statutory bar.
The question as to whether there exists a clear case of laches on the part of a person seeking a remedy is one of fact and so also that of prejudice. The said principle may not have any application when the existence of fraud is pleaded and proved by the other side. To determine the difference between the concept of laches and acquiescence is that, in a case involving mere laches, the principle of estoppel would apply to all the defences that are available to a party.
Therefore, a defendant can succeed on the various grounds raised by the
9/21 plaintiff, while an issue concerned alone would be amenable to acquiescence.
Acquiescence
24. We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other.
25. Acquiescence would mean a tacit or passive acceptance.
It is implied and reluctant consent to an act.
In other words, such an action would qualify a passive assent.
Thus, when acquiescence takes place, it presupposes knowledge against a particular act.
From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place.
As a consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the compliance of the original terms. Hence, what is essential, is the conduct of the parties. We only dealt with the distinction involving a mere acquiescence.
When acquiescence is followed by delay, it may become laches. Here again, we are inclined to hold that the concept of Acquiescence is to be seen on a case-to-case basis."
(emphasis supplied by the Hon'ble
10/21 Supreme Court) (C) Chairman, State Bank of India v. M J James, (2022) 2 SCC 301:
"36.
What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days, etc. as it depends upon the facts and circumstances of each case.
A right not exercised for a long time is nonexistent.
Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay.
In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time.
Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time.
Pertinently, the challenge was primarily on the ground that the respondent was not allowed to be represented by a representative of his choice. The respondent knew that even if he were to succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been also noticed in the impugned judgment. This is highlighted to show the prejudice caused to the appellants by the delayed challenge. We would, subsequently, examine the question of
11/21 acquiescence and its judicial effect in the context of the present case.
XXX
38. In Ram Chand v. Union of India [Ram Chand v. Union of India, (1994) 1 SCC 44] and State of U.P. v. Manohar [State of U.P. v. Manohar, (2005) 2 SCC 126] this Court observed that if the statutory authority has not performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable time, they normally should not be permitted to take the defence of laches and delay. If at all, in such cases, the delay furnishes a cause of action, which in some cases as elucidated in Union of India v. Tarsem Singh [Union of India v.
Tarsem Singh, (2008) 8 SCC 648 : (2008) 2 SCC (L&S) 765] may be continuing cause of action. The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct.
Abandonment implies intentional act to acknowledge, as has been held in para 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P.
12/21 [Motilal Padampat Sugar Mills Co. Ltd.
v. State of U.P., (1979) 2 SCC 409 :
1979 SCC (Tax) 144] Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P.
Jal Nigam v. Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] after referring to several judgments, has accepted the following elucidation in Halsbury's Laws of England:
(Jaswant Singh case [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500], SCC pp. 470-71, paras 12-13).
"12. The statement of law has also been summarised in Halsbury's Laws of England, Para 911, p. 395 as follows:
'In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i)acquiescence on the claimant's part;
(ii) any change of position that has occurred on the defendant's part.
Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it.
It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if
13/21 the remedy were afterwards to be asserted.
In such cases lapse of time and delay are most material.
Upon these considerations rests the doctrine of laches.'
13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time.
If they would have been vigilant enough, they could have filed writ petitions as others did in the matter.
Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent.
Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial
14/21 management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?"
39. Before proceeding further, it is important to clarify distinction between "acquiescence" and "delay and laches".
Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord.
He cannot afterwards complain. [See Prabhakar v. Sericulture Deptt., (2015) 15 SCC 1 : (2016) 2 SCC (L&S) 149. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das, 1925 SCC OnLine Cal 30 : AIR 1925 Cal 1107] In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance , [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. [See Krishan Dev v. Ram Piari, 1964 SCC OnLine HP 5 : AIR 1964 HP 34] Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and in spite of the infringement takes no action mirroring acceptance.
[See "Introduction", U.N. Mitra, Tagore Law Lectures - Law of Limitation and Prescription, Vol. I, 14th Edn., 2016.]
15/21 However, acquiescence will not apply if lapse of time is of no importance or consequence.
40. Laches unlike limitation is flexible.
However, both limitation and laches destroy the remedy but not the right.
Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity.
On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right.
Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches.
Acquiescence in this manner is quite distinct from delay.
Acquiescence virtually destroys the right of the person. [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation."
(emphasis supplied by the Hon'ble Supreme Court) In Mrinmoy Maity v. Chhanda Koley, 2024 SCC OnLine SC 551, the Hon'ble Supreme Court held that: - "9.
...An applicant who approaches the court belatedly or
16/21 in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity.
Delay or latches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.
10. The discretion to be exercised would be with care and caution. If the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. There may be myriad circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and circumstances of each case, same cannot be described in a straight jacket formula with mathematical
17/21 precision. The ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled.
11. For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed.
However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and latches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and latches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court."
18/21 Recently, the Hon'ble Supreme Court in the case of the State of Uttar Pradesh & Ors.
Versus Rajmati Singh (Civil Appeal No.9329 of 2022) (Arising out of SLP (C) No.28128 of 2017) examined the stale claim.
In paragraph-19, earlier decision has been taken note of and the following observations have been made. Paragraph-19 is extracted hereunder:
"19.Close to the facts of this case, in "C.
Jacob versus Director of Geology and Mining And Other" (2008) 10 SCC 115, this Court, having found that the employee suddenly brought up a challenge to the order of termination of his services after 20 years and claimed all consequential benefits, held that the relief sought for was inadmissible. The legal position in this regard was laid out in the following terms:
"10. Every representation of the Government for relief, may not be applied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to
19/21 inform that the matter did not concern the Department or to inform the appropriate Department.
Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.
11. When a decision is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of "acknowledgement of a jural relationship"
to give rise to a fresh cause of action.
12. When a government abandons service to take alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that
20/21 he should be taken back to duty. Nor can such employee be treated as having continued in service, thereby deeming the entire period as qualifying service for the purpose of pension. That will be a travesty of justice.
13. Where an employee unauthorisedly absents himself and suddenly appears after 20 years and demands that he should be taken back and approaches the court, the department naturally will not or may not have any record relating to the employee at that distance of time. In such cases, when the employer fails to produce the records of the enquiry and the order of dismissal/removal, court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back wages for 20 years, ignoring the cessation of service or the lucrative alternative employment of the employee. Misplaced sympathy in such matters will encourage discipline, lead to unjust enrichment of the employee at fault and result in drain of public exchequer. Many a time there is also no application of mind as to the extent of financial burden, as a result of a routine order for back wages."
6. Re-list this matter on 27.08.2024 for
21/21 final disposal."
2. In order to give one more opportunity, the matter was listed today. Today, petitioner could not apprise as to how he would overcome delay and laches insofar as representation of the year 2012 is concerned.
3. Accordingly, Civil Review No. 14 of 2022 stands dismissed.
(P. B. Bajanthri, J) ( Alok Kumar Pandey, J) mcv/- AFR/NAFR CAV DATE Uploading Date 09.09.2024 Transmission Date